In our opinion, it was prejudicial error to allow the jury to consider a plea of guilty which had been withdrawn by permission of the court, and to permit the prosecutor on the People’s case in chief to use such plea as proof of the defendant’s guilt (People v. Spitaleri, 9 N Y 2d 168). The prosecutor’s repeated references to such prior plea of guilt in his opening and in his summation, and the learned Trial Judge’s reference to it in his charge to the jury, even though defense counsel raised no objection or exception to such reference by the Trial Judge, served to deprive defendant of a fair trial (People v. Rehm, 13 A D 2d 844). Appeal from orders, dated December 14,1960 and January 16, 1961, dismissed as academic. Ughetta, Kleinfeld, Pette and Brennan, JJ., concur; Nolan, P. J., concurs in the dismissal of the appeal from the orders, but dissents from the reversal of the judgment and the granting of a new trial, and votes to affirm the judgment.